Berookhim Royal Catering v. Farnad CA2/1 ( 2022 )

Filed 10/6/22 Berookhim Royal Catering v. Farnad CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
BEROOKHIM ROYAL CATERING, B311529
INC. et al.,
(Los Angeles County
Plaintiffs, Cross-defendants Super. Ct. No. 20STCV15941)
and Respondents,
v.
SHAHBAZ FARNAD et al.,
Defendants,
Cross-complainants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Stuart M. Rice, Judge. Affirmed.
Blank Rome and Arash Beral for Defendants, Cross-
complainants and Appellants; Devaney Pate Morris & Cameron,
Susan L. Mason and David R. Plancarte for Defendant, Cross-
complainant and Appellant Shahbaz Farnad.
Law Offices of Payam Poursalimi, Payam Y. Poursalimi;
Azadegan Law Group and Ramin Azadegan for Plaintiffs, Cross-
defendants and Respondents.
____________________
This appeal arises from the trial court’s denial of a Code of
Civil Procedure section 425.161 special motion to strike the
complaint of Berookhim Royal Catering, Inc., doing business as
Beverly Catering, and its principal, Mehran Berookhim
(Berookhim) (collectively, Plaintiffs) against Shahbaz Farnad
M.D. (Farnad) and his sister Parvaz Farnad Mizrahi, D.D.S.
(Mizrahi) (collectively, Defendants).
Farnad had hired Plaintiffs to provide kosher catering
services for his wedding scheduled during Memorial Day
weekend in May 2020. Berookhim requested a deposit of at least
$5,000 to hold the date for Farnad’s wedding. Farnad wrote a
check for $12,000 to Berookhim.
Due to the Covid-19 pandemic, in March 2020, Farnad
cancelled Plaintiffs’ services and demanded a full refund.
Berookhim explained he could refund $7,000, but that the $5,000
deposit was non-refundable. Less than an hour after their final
communication on the issue, Farnad posted on Facebook that
Plaintiffs were, inter alia, thieves and crooks, and that
1 SLAPP is an acronym for “strategic lawsuit against public
participation.” (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) For clarity, we refer to a “SLAPP” or
“anti-SLAPP” motion as “a special motion to strike”—the
language used in the statute (Code Civ. Proc., § 425.16, subd.
(b)(1)). All unspecified statutory references are to the Code of
Civil Procedure.
2
Berookhim was a swindling lying scam artist. Farnad “made the
post public so people [could] see what a thief [Berookhim] is and
all the stealing that his company Beverly Catering does.” Farnad
asked others, over four dozen times, to post reviews or repost his
original post to assist him in “expos[ing]” “their thievery.”
Farnad’s sister, Mizrahi, shared Farnad’s post and disseminated
it on other social media sites.
Plaintiffs sued Defendants for, inter alia, defamation and
intentional infliction of emotional distress. Defendants moved to
strike the complaint pursuant to section 425.16, contending the
causes of action arose from statements made in a place open to
the public or a public forum in connection with an issue of public
interest or in furtherance of the exercise of the constitutional
right of free speech in connection with a public issue or an issue
of public interest. (§ 425.16, subd. (e)(3), (e)(4).)
The trial court agreed with Defendants that their speech
was protected activity within the meaning of the statute, but also
found that Plaintiffs demonstrated a probability of prevailing on
their causes of action. (§ 425.16, subd. (b)(1).) Accordingly, it
denied the special motion to strike.
On appeal, Defendants raise several arguments challenging
the trial court’s finding of a probability of Plaintiffs prevailing on
their claims. They also request that we award fees and costs to
them as prevailing parties on their special motion to strike and
on appeal. For their part, Plaintiffs argue the trial court
erroneously found that Defendants’ posts were made in
connection with a public issue or an issue of public interest.
We conclude Defendants have not demonstrated their
speech was made in connection with a public issue or an issue of
public interest. In the Spring of 2020, the Covid-19 pandemic
3
was an issue of public interest. However, a $5,000 (or even
$12,000) financial dispute between a prospective groom and his
erstwhile caterer over a deposit for a cancelled wedding does not
qualify as an issue of public interest just because it was
occasioned by the pandemic. The communications at the heart of
this case are personal, financial, and by their terms, untethered
to any pre-existing issue of interest to anyone but the online
combatants. They are also acknowledged to have been triggered
by an emotional outburst that occurred within an hour of the
final unsatisfying communication between the parties about the
requested refund. Unfortunately, the outburst occurred in a
social media post which, over the course of the one day before
Farnad removed it, generated approximately 100 comments. Yet
those comments—and certainly Farnad’s responses to those
comments—had little connection to any broader public issue;
rather, they focused on expressing empathy for Farnad,
suggesting solutions, taking sides in the particular refund
dispute that triggered the posting, or expressly not taking sides
but urging that the dispute should be handled privately.
Applying the analytical framework our Supreme Court has
mandated for the resolution of such issues (see FilmOn.com Inc.
v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn); Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610 (Rand)), we
have examined the communications at issue in their context to
determine, as a threshold matter, whether the first prong
necessary for a meritorious special motion to strike pursuant to
section 425.16 has been met. We conclude Defendants’ motion
fails because the speech at issue was not in connection with an
issue of public interest. Thus, we affirm the trial court’s denial of
the special motion to strike, albeit on different grounds than the
4
trial court’s ruling,2 and deny Defendants’ request for fees and
costs.
BACKGROUND
A. Factual Summary
On February 12, 2020, Farnad contacted Berookhim to
inquire about Plaintiffs’ kosher catering services for his wedding,
scheduled for Memorial Day weekend, 2020. On February 14,
2020, Berookhim sent Farnad a text message informing Farnad,
“There’s another client who just called me today [f]or the same
date,[ ] but I’m holding it for you. All you need to do is give $5000
deposit on credit card[ ] to save the date, [w]henever you[’re]
ready.” Farnad responded, “do not take another client please.
I[‘]m counting on you. . . .”
On February 27, 2020, Farnad, Mizrahi, and Mizrahi’s
husband met with Berookhim. Berookhim informed Farnad that
the total catering charge would be approximately $24,000. The
next day, Farnad returned to Berookhim’s office and asked him
how much he should write the check for. Berookhim responded
that he would be happy with anything over $5,000. Farnad wrote
Berookhim a check for $12,000, and Berookhim stated he would
provide a formal agreement and updated menu.
According to Berookhim, before Farnad gave him the
deposit, Berookhim “told [Farnad] at least four separate times
that his deposit was non-refundable. More specifically, [Farnad]
2If a trial court’s ruling or decision is correct on any theory,
the appellate court will affirm it regardless of the trial court’s
reasoning. (D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 18-19; Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956.)
5
kept asking [Berookhim] if he would get a refund if he broke up
with his fiancée and [Berookhim] would always tell him he could
not get a refund if he cancelled.”
By March 12, 2020, Farnad had not received the updated
menu or the written contract, although he requested the
documents at least twice. Alluding to the Covid-19 pandemic and
executive order requiring social distancing, Farnad sent a text
message to Berookhim stating, “there [is] a small chance that we
will have to push back the wedding. . . . Just need to know what
the options are at this point please.” Berookhim responded, “In
case you decide to postpone, I will credit your entire deposit to
the appropriate date. That way you don’t lose any money. . . .
It’s happening to everybody. . . . Don’t worry. We are going to
put together a beautiful wedding for you in case you postpone.”
Farnad stated, “there[’]s a possibility that we will . . . forego a
wedding party entirely. . . . [I]n the case that we do that, [I’]d ask
to get the deposit refunded in full please.” Berookhim told him,
“[I]n that scenario, unfortunately we cannot give a full refund.
We would have to keep at least $5000[,] [b]ecause unfortunately
we gave up our wedding spot for you. I will be able to refund
$7000 . . . . In case you decide to have the wedding at a future
date, I will cr[e]di[t] that deposit so you don’t lose any money.”
Farnad did not respond to this text.
On March 22, 2020, Farnad informed Berookhim by text
message that that he and his fiancée were cancelling the
wedding, and “would like to get the full $12[,000] refunded . . . . I
don’t see any reason to keep a deposit of $5[,000] for that date at
this point because no other event would be possible for that date
right now.” Berookhim explained, “[W]e turned away three
weddings on your dates. And even if the weddings do not happen
6
on that specific date, these are all clients that we are postponing
their events to other dates. Meaning if not for your wedding, we
would’ve booked another wedding and postponed them to another
date.” In response, Farnad sent his mailing address.
On April 6, 2020, Farnad noted he had not yet received the
check and wanted to know when he could expect it. Berookhim
responded that he would be sending it out soon. Farnad then
stated, “I hope you refund the full amount since there was never
a mention of [a] non-refundable deposit and you never sent a
contract to me despite several requests.”
According to Farnad, by April 14, 2020, he had not received
any refund. He telephoned Berookhim, who told him he was “just
about to send . . . the check.” Farnad sought to confirm
Berookhim would be refunding the entire $12,000. After an
exchange in which the parties continued to disagree as to how
much Plaintiffs should refund to Farnad, Berookhim stated, “You
know what? F[***][3] you!” and hung up.
At 4:35 p.m. on April 14, 2020, Farnad texted Berookhim,
“Ron [Berookhim’s nickname] don[’]t do this.” “You are being so
short sighted Ron.” “Okay this is what you want, then this is
what we’ll do. You f[***]ed with the wrong person.” Thereafter,
that same day, Berookhim texted Farnad, “After our conversation
today, and your threats, I spoke to my lawyer. Under the advice
of my attorney, I’m not to communicate further with you. He has
3 We generally omit profanity from our opinions if it is
gratuitous, but here both parties resorted to it as their dispute
became more emotional and that lack of emotional control was
offered as a material fact by Farnad in his arguments below and
on appeal.
7
advised not to give any money back to you. Any communications
you have must be made to [Berookhim’s attorney].”
At 5:16 p.m. that day, Farnad tagged Beverly Catering’s
Facebook page and posted on Facebook the following message:
“Ron Berookhim of Beverly Catering is a thief and a disgusting
person. Here’s the story: at the end of February [I] spoke to Ron
about catering my wedding on Memorial Day weekend. Without
a contract or any discussion of non-refundable deposit, and as a
measure of goodwill, [I] went to his office and gave him a check
for $12[,000]. Over the course of the next two weeks, [I]
repeatedly sent him messages to please send me a contract. He
never did. Amidst the coronavirus pandemic, my wedding was
cancelled. I have since tried to get Ron to return my money and
he has been nothing more than a swindling, cheating, disgusting
animal. He refuses to return my money despite the fact that city,
county, state and federal agencies have forced me to cancel what
was supposed to be the happiest day of my life. I[’]m a young guy
trying to start a beautiful life with my bride in the midst of a
global pandemic. This lame excuse for a human being is not only
stealing our money, he has cussed me out and made threats to
me over the phone. I don[’]t know why he thinks he deserves to
hold on to $12[,000] of my money for an event that he did no work
for or provided any services to, but people need to see him for who
he is. A thief. Do not use him to cater your events. Do not invite
this evil disgusting thief into your joys. He is a shame to his
community and a swindling lying scam artist who does not have
the empathy to think of a young couple trying to get their lives
started on a positive note. Please share this story so everyone
sees this thief for who he is. His despicable actions are a disgrace
to the Jewish community during a difficult time across the globe
8
where people should be coming together. Please share this story
on Yelp, Google, [s]ocial media and all other venues that you can
think of so people see the truth. I beg you all to please not
embelish [sic] the story from the facts above. I only ask the truth
to be shared. Thank you in advance! @beverlycatering Mehran
Ron Berookhim [hyperlinked to Berookhim’s Facebook page]
#thief.”4
The parties point out that Farnad’s post received 550
comments. However, over 100 of those comments were Farnad’s
responses to comments, reiterating that Berookhim was a crook
and thief, who stole his money, that Farnad would “expose
[Berookhim’s] fraud for all to see,” and urging others to repost his
post or write their own reviews to “expose[ ]” Plaintiffs “for their
thievery” and that “Beverly Catering needs to pay.” Over 50 of
the comments appear to be the same comment by Berookhim,
sharing his side of the story, including that “somebody tried to
blackma[il] [him].” One hundred people commented on the
4 “A hashtag is a brief statement that categorizes or
summarizes the post and uses a hash symbol (#) before a relevant
keyword or phrase to make that word or phrase more readily
searchable. On most social-media platforms, hashtags are
interactive, so that clicking on a hashtagged word within a tweet
or post will show the reader other tweets or posts marked with
that keyword. Hashtags that are used with the most frequency
become ‘trending topics’ that are highlighted for other social-
media users.” (Lidsky & Jones, Of Reasonable Readers and
Unreasonable Speakers: Libel Law in a Networked World (2016)
23 Va. J. Soc. Pol’y & Law 155, 165, fns. omitted (hereafter Of
Reasonable Readers).)
9
thread created by Farnad’s original post.5 In response to one
comment that Farnad could file a theft report with the Los
Angeles Police Department (LAPD), Farnad responded that he
was “going to file a police report.”6
At 11:05 p.m. on April 14, 2020, Berookhim also
independently posted his side of the story on his Facebook page.
5 Some commenters urged Farnad to take Berookhim to
small claims court or report him to the Better Business Bureau.
Others urged Berookhim to give Farnad back his deposit; another
asked for (and was given) Berookhim’s phone number so they
could “pester” him; another pointed out that Farnad should
remind Berookhim that Farnad has “2,680 friends”; and another
posted an emoji of an arm with a flexing bicep, assuring Farnad
“we are here brother!! You don’t always need a lawyer.” Others
shared they had used Berookhim’s services and were unsatisfied;
some also defended Berookhim; and others urged Farnad to not
make their dispute public.
6 We observe that the Facebook comments about reporting
the matter to the LAPD are included as an exhibit to Berookhim’s
declaration in opposition to the special motion to strike and that
these posts do not appear in the over 120 pages of Facebook
comments that Defendants submitted in support of their motion
to strike. In the paragraph of Berookhim’s declaration that
referred to this exhibit, Berookhim concluded that readers
understood Farnad was accusing Berookhim of criminal theft.
Defendants objected to that paragraph on the basis that
Berookhim’s statements were legal conclusions or ultimate facts.
Defendants further objected that the testimony lacks foundation
and that the commenter’s statements constituted inadmissible
hearsay. The trial court sustained the objection. Although
Berookhim’s statements were properly excluded, the posts he
authenticated were properly admissible along with the other
social media postings in the record.
10
Another of Farnad’s sisters commented on Berookhim’s Facebook
post: “My brother posted something in anger . . . . Even if I
weren’t his sister, it’s plain & simple. You took his money to
cater an event that is no longer happening. Just return his
money. It doesn’t take a rocket scientist to figure it out. . . . He
obviously had no doubts or your abilities or reputation as a
caterer—he was hiring you for the biggest event in his life.”
For her part, Mizrahi contends “[t]he limit of [her] online
involvement in this matter concerns [her] sharing [her] brother’s
April 14 Facebook post (which [she] later deleted), a Yelp review
that [she] left regarding Plaintiffs (which Yelp removed) and a
Google review that [she] had inadvertently left from [her]
daughter’s account (which [she] removed immediately after [she]
discovered that [her] daughter’s name was associated with the
review). Additionally, [she is] a member of the LA Mommies
Facebook group, which was created by a Persian Jewish
mother. . . . Many members posted about the dispute on the LA
Mommies group.” Mizrahi responded to one of those comments,
setting forth, among other things, the merits of her brother’s
dispute with Berookhim.
By April 16, 2020, Farnad had deleted his post and created
a new post on Facebook. The preamble of his post stated, “Two
nights ago, I posted a statement with choice words and
characterizations about a member of my community and about
my experience with his catering company. The post spread
quickly and got a considerable amount of attention. I wrote it
because I felt utterly violated by the vendor and wanted the
community to hear my story. I’ve come to realize that my
emotional plea to have my voice heard was not my most elegant
moment—a mistake to call him out without sharing the entirety
11
of the story, without proof, and not giving him an honest open
platform to give his version of the events.” He described the
details of his interaction with Berookhim. He then concluded,
“After this . . . I decided to take this to the court of public opinion
and share it with my community. . . . I stand by my words and
my character for all to see and reflect on. I made the decision to
take this to the community and not simply seek legal recourse
because the task of taking a vendor to court during these hard
times is just exhausting to think about right now. I was left no
choice. I will leave this here for the readers to judge this for
themselves. . . . I shared this experience with my community so
that other brides and grooms don’t deal with the same
misfortune. So other brides and grooms don’t feel voiceless
during this time. So other brides and grooms don’t start their life
with wasted debt and difficult memories. I shared this
experience so that our community doesn’t accept theft under the
banner of kashrut.”
On April 21, 2020, Farnad’s attorney sent a letter to
Berookhim. Among other things, Farnad’s attorney urged
Berookhim to take down his Facebook post, and stated, “Enraged
by your conduct and inappropriate personal attack upon him
[Farnad] resorted to a public posting for retribution. After a day
[Farnad] recognized that his emotional reaction was regrettable
and removed the posting. [¶] . . . [¶] [Farnad] was wrong to air
his grievances publicly, and openly regrets having done so despite
his disappointment by your retention of his funds. . . .”
Berookhim’s counsel responded to Farnad’s counsel by email.
Among other things, he stated, “rest assured the money is in
escrow until litigation is complete.”
12
Berookhim claimed that as a result of Farnad’s conduct, he
experienced anxiety, stress, heart palpitations, headache, and
have had difficulty falling asleep. Further, he submitted a
declaration of a potential customer who stated that he did not use
Plaintiffs’ catering business because of Farnad’s statements on
Facebook to support his claim that he lost business.
B. Procedural History
On April 27, 2020, Plaintiffs filed a verified complaint
against Farnad, Mizrahi, and Does 1 to 100, alleging causes of
action for defamation per se, defamation, trade libel, slander,
false light, and intentional infliction of emotional distress. In
particular, the complaint focused on Defendants’ statements that
Plaintiffs are “ ‘thieves’ ”; Berookhim “ ‘of Beverly Catering is a
thief’ ”; Berookhim “ ‘is [a] thief’ ”; Plaintiffs are “ ‘crooks’ ”; and
“ ‘Do not use him to cater your events. Do not invite this evil
disgusting thief into your joys. He is a shame to his community
and a swindling lying scam artist . . . . Please share this story so
everyone sees this thief for who he is. His despicable actions are
a disgrace to the Jewish community. . . . He is a swindling lying
scam artist. . . . Please share this story so everyone sees this
thief for who is. . . . Please share this story on Yelp, Google,
Social medica [sic] and all other venues that you can think of so
people see the truth.’ ”7 (Italics omitted.) Plaintiffs sought
7Plaintiffs’ complaint identifies other statements, most of
which are in the same vein, made on social media between Doe
Defendants and Farnad. Neither the complaint nor Defendants’
motion to strike identifies which statements are attributable to
Farnad or Mizrahi and which are attributable to the Doe
Defendants.
13
injunctive relief and prayed for damages, punitive damages, and
attorney fees and costs.
On June 16, 2020, Defendants filed a verified answer to the
complaint, a cross-complaint,8 and a special motion to strike the
entirety of the complaint, or in the alternative portions thereof.
In their special motion to strike, Defendants argued
Plaintiffs’ causes of action arose from activity protected under the
anti-SLAPP statute as their statements were “written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest,” and
“other conduct in furtherance of the exercise of the constitutional
right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(3)-(4).)
Defendants’ counsel submitted a declaration in support of
the motion to strike. In it, he identified as an “Iranian Jew,” and
“inform[ed] the [c]ourt that, without a doubt, Plaintiffs have built
a notable reputation among the Persian Jewish community in
Southern California.” Counsel’s personal experience has been
that “there are only a handful of reputable glatt kosher caterers
specializing in Persian food in Southern California that could
service a large (200+) wedding reception.” Further, he observed
that April 14, 2020 was a memorable night for the Persian
Jewish community “due to the online spat” between Farnad and
8 In his cross-complaint, Farnad alleged causes of action for
violation of Penal Code section 496; conversion; fraud; breach of
contract; money had and received; open book account; account
stated; breach of the implied covenant of good faith and fair
dealing; violations of Business and Professions Code section
17200 et seq.; and restitution to avoid unjust enrichment.
14
Berookhim. No one within the community conveyed to counsel
that they believed Berookhim was defamed. Rather, “[t]he value
that they’ve ascribed to the posts are not Defendants’ words at all
(which have been chalked up to a legal dispute over a defined
amount of money) but those of third parties who . . . disclosed
their own experiences with Plaintiffs.”
On February 10, 2021, the trial court ruled that
Defendants had demonstrated the first prong under the anti-
SLAPP statute because their statements were “made in a place
open to the public or a public forum in connection with an issue of
public interest.” (§ 425.16, subd. (e)(3).) As to the issue being one
of public interest, the court found, “[t]he evidence before the court
reflects that the professionalism and quality of service rendered
by a caterer is an issue of public interest not only in the Persian
Jewish community, where Defendants contend that it is of
highest importance, but also to the public at large because the
statements may serve as a warning not to use the Plaintiffs’
services.” “Farnad’s dealings with Plaintiffs pertaining to the
refunds of a deposit, whether a meritorious claim or not, shed
light on the experience of contracting with Plaintiffs’ business,
and therefore may assist other potential clients in choosing a
caterer for their own events.”
However, the trial court also found that Plaintiffs defeated
Defendants’ special motion to strike by demonstrating a
probability of prevailing on their claims.9 Thus, the trial court
denied the special motion to strike.
9As to defamation, the trial court found that “Defendants
accuse Plaintiffs of the crime of larceny” and whether Defendants’
statements are false hinged on whether the $5,000 was
15
Defendants timely filed this appeal.
DISCUSSION
A. Statutory Framework and Standard of Review
The Legislature enacted section 425.16 to “combat lawsuits
designed to chill the exercise of free speech and petition rights.”
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1060.) To that end, the anti-SLAPP statute
provides that “[a] cause of action against a person arising from
any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or
the California Constitution in connection with a public issue shall
be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16,
subd. (b)(1).) Acts in furtherance of the right of free speech that
are relevant here include “any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest” and “any . . . conduct
in the furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (§ 425.16,
subd. (e)(3), (4).)
When considering whether a claim should be stricken,
courts undertake a two-prong analysis. “First, the defendant
refundable or not. For purposes of the motion, however, it found
Plaintiffs carried their burden. As to the intentional infliction of
emotional distress claim, the trial court found Defendants’
argument that such a claim could only arise out of bodily injury
or that there was a requirement of a duty was incorrect.
16
must establish that the challenged claim arises from activity
protected by section 425.16. [Citation.] If the defendant makes
the required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)
“The plaintiff can carry his burden by making a prima facie
showing of facts that would, if proved, support a judgment in his
favor. [Citation.] The court’s consideration of the defendant’s
evidence is limited to determining whether it defeats the
plaintiff’s showing as a matter of law. [Citation.] The trial court
does not weigh the evidence or make credibility determinations.
[Citation.]” (Midland Pacific Building Corp. v. King (2007) 157
Cal.App.4th 264, 271.)
We review de novo the trial court’s grant or denial of a
special motion to strike under the anti-SLAPP statute. (Park v.
Board of Trustees of California State University, supra, 2 Cal.5th
at p. 1067.) “[O]nly a claim ‘ “that satisfies both prongs of the
anti-SLAPP statute . . . is a SLAPP, subject to being stricken
under the statute.” ’ [Citation.]” (Serova v. Sony Music
Entertainment (2022) 13 Cal.5th 859, 872.) Thus, we may
evaluate either prong that resolves the appeal. (See ibid., citing
Citizens for Fair REU Rates v. City of Redding (2018) 6 Cal.5th 1,
7 [when one argument resolved a case, we did not need to discuss
an alternative argument that would have led to the same result].)
17
B. Defendants’ Statements Are Not Protected Activity
Because They Do Not Implicate an Issue of Public
Interest
1. Legal Principles
Section 425.16 does not define “an issue of public interest.”
(See generally § 425.16.) However, our Supreme Court has
counseled that courts should conduct a two-part analysis that
considers the content and context of the speech when assessing
whether an issue is one of public interest. (FilmOn, supra, 7
Cal.5th at p. 149.) “First, we ask what ‘public issue or . . . issue of
public interest’ the speech in question implicates—a question we
answer by looking to the content of the speech. [Citation.]
Second, we ask what functional relationship exists between the
speech and the public conversation about some matter of public
interest. It is at the latter stage that context proves useful.” (Id.
at pp. 149-150; see Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243
[describing FilmOn’s two-part test as: “first, we ask what public
issue or issues the challenged activity implicates, and second, we
ask whether the challenged activity contributes to public
discussion of any such issue”].)
“[C]ontextual considerations [are not] relevant merely to
some generalized evaluation implicit in the analysis. In
articulating what constitutes a matter of public interest, courts
look to certain specific considerations.” (FilmOn, supra, 7 Cal.5th
at p. 145.) Such considerations include whether “the statement
or conduct concerns ‘a person or entity in the public eye’ ” (Rand,
supra, 6 Cal.5th at p. 621); “ ‘could affect large numbers of people
beyond the direct participants’ ” (FilmOn, supra, at p. 145);
“involves ‘a topic of widespread, public interest’ ” (Rand, supra, at
p. 621) and “ ‘itself contribute to the public debate’ ” (FilmOn,
18
supra, at p. 150); “or ‘affect[ed] a community in a manner similar
to that of a governmental entity’ ” (id. at pp. 145-146). Further,
“ ‘ “a matter of concern to the speaker and a relatively small,
specific audience is not a matter of public interest.” ’ ” (Rand,
supra, at p. 621.) Additionally, “ ‘ “[a] person cannot turn
otherwise private information into a matter of public interest
simply by communicating it to a large number of people.” ’ ”
(Ibid.)10
Of particular relevance to resolving the instant appeal is
our Supreme Court’s admonition to resist arguments based on
beguiling abstractions that can often give a false impression that
a party-specific dispute implicates broader issues of public
concern: “At a sufficiently high level of generalization, any
conduct can appear rationally related to a broader issue of public
importance. What a court scrutinizing the nature of speech in
the anti-SLAPP context must focus on is the speech at hand,
rather than the prospects that such speech may conceivably have
indirect consequences for an issue of public concern. ([See, e].g.,
10 Defendants cite Nygard, Inc. v. Uusi-Kerttula (2008) 159
Cal.App.4th 1027 for the proposition that an issue of public
interest “is any issue in which the public is interested.” (Id. at
p. 1042, italics omitted.) As our colleagues in Division Seven
have observed, “Nygard’s sweeping pronouncement, made 11
years before FilmOn, is at odds with the Supreme Court’s caution
that determining whether the subject of speech or other conduct
constitutes a matter of public interest requires an evaluation of
specific contextual considerations, such as whether a person or
entity was in the public eye or whether the activity occurred in
the context of an ongoing controversy, dispute or discussion.”
(Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th
802, 822, fn. 8.)
19
. . . Consumer Justice Center v. Trimedica International, Inc.
(2003) 107 Cal.App.4th 595, 601 . . . [‘If we were to accept
[defendant’s] argument that we should examine the nature of the
speech in terms of generalities instead of specifics, then nearly
any claim could be sufficiently abstracted to fall within the anti-
SLAPP statute’]; Commonwealth Energy Corp. v. Investor Data
Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 . . . [‘While
investment scams generally might affect large numbers of people,
the specific speech here was a telemarketing pitch for a
particular service marketed to a very few number of people. . . .
The speech was about [defendant’s] services, not about
investment scams in general’].)” (Rand, supra, 6 Cal.5th at
p. 625.)
On appeal, Defendants argue that the relevant specific
considerations described above weigh in favor of finding—as the
trial court did—that the Defendants’ social media posts
concerned an issue of public interest. They contend Plaintiffs are
in the public eye; that Farnad’s Facebook post could and did
affect large numbers of people beyond Plaintiffs and Defendants
in that it provided members of the Persian Jewish community
with “useful information regarding Plaintiffs” during the Covid-
19 pandemic; and involved a topic of widespread interest—
namely, “the quality of services provided to the Jewish and
Persian Jewish communities by kosher caterers specializing in
large events, particular[ly] during the Covid-19 [p]andemic.”
In response, Plaintiffs place significant reliance on the
recent appellate opinion of Woodhill Ventures, LLC v. Yang
20
(2021) 68 Cal.App.5th 624 (Woodhill Ventures).11 In Woodhill
Ventures, the wife of a “[s]elf-proclaimed celebrity jeweler” with
1.5 million social media followers, Ben Yang, ordered a cake from
Big Sugar Bakeshop (Big Sugar) for their seven-year-old son. (Id.
at pp. 626, 627.) Big Sugar, which had two shops in Los Angeles
and had been mentioned in national publications (id. at p. 634),
created a cake, pursuant to Yang’s wife’s instructions, that
appeared to have a knocked-over beaker atop a cake from which
pill-like objects spilled (id. at p. 638). When the Yangs received
the cake, they believed the fondant pills looked too realistic and
demanded an apology and a refund. (Id. at pp. 626-627, 628.)
Yang then turned to Twitter and Instagram, where he accused
Big Sugar of putting “prescription pills” on a seven-year-old’s
birthday cake and stated, inter alia, “ ‘we gonna make
@bigsugarbakeshop feel it,’ ” “ ‘[a]nyone . . . would know that you
should never ever put drugs on a [seven] year old kids [sic]
b[irth]day cake,’ ” and that he would “ ‘make sure nobody [he
knew] . . . ever does business with idiots such as your business.’ ”
(Id. at p. 628, capitalization omitted.)
In considering whether Yang’s speech concerned an issue of
public interest, Division Eight of this court observed that “[m]ere
mentions in national publications do not make Big Sugar a
business in the public eye.” To the contrary, it was a small
business. (Woodhill Ventures, supra, 68 Cal.App.5th at p. 634.)
Yang also failed to persuade the appellate court that his
statements were of public interest because they were about the
11Woodhill Ventures, supra, 68 Cal.App.5th 624 was
decided after the trial court issued its ruling in the instant
matter.
21
dangers of children mistakenly eating pills they believed were
candy. (Id. at p. 632.) The court concluded that although candy
confusion was a topic of public interest, Yang’s statements lacked
a sufficient degree of closeness to that topic. (Ibid.) Reflecting
upon the context of the statements, the court concluded, “Yang’s
statements did not seek public discussion of anything. They
aimed to whip up a crowd for vengeful retribution.” (Id. at
pp. 632-633.) Finally, the appellate court rejected Yang’s
argument that his posts served as consumer protection
information. It observed, “[d]ecisions generally have extended
protection . . . only when the ‘consumer information’ goes beyond
recounting a one-time dispute between a buyer and a seller.”
“Yang’s quest for revenge did not give consumers information
beyond his complaints about his one cake order.” (Id. at p. 634.)
The reasoning in Woodhill Ventures is sound and in
keeping with the Supreme Court’s guidance in FilmOn that
courts consider the context as well as the content of the
statements at issue. Moreover, given the factual parallels,
including the similar tone of much of the speech in this matter
and in Woodhill Ventures, we conclude that Plaintiffs are correct
that Woodhill Ventures is particularly instructive on this appeal.
2. Plaintiffs Are Not in the Public Eye
Here, Defendants argue that Plaintiffs are in the “public
eye.” They point to the fact that Plaintiffs are prominent kosher
caterers well known in the Persian Jewish community in
Southern California; had been on The Real Housewives of
Beverly Hills; and that the “sheer amount of attention that
Farnad’s Facebook post garnered evinces Plaintiffs’ notoriety in
the community.”
22
We do not agree. Like the bakery in Woodhill Ventures,
Beverly Catering is a small business, and there are other caterers
who serve the Persian Jewish community. A mere reference to
Beverly Catering in the Real Housewives of Beverly Hills (at
some unknown date, not in the record) is insufficient to qualify it
as being in the public eye. Similarly, the bakery plaintiff in
Woodhill Ventures had been mentioned in national publications,
yet, as in that case, we believe “supposed proximit[y] to fame
do[es] not turn this into a case of public interest.” (Woodhill
Ventures, supra, 68 Cal.App.5th at p. 634; cf. Nygard, Inc. v.
Uusi-Kerttula, supra, 159 Cal.App.4th 1027 [concluding
magazine article concerning a Finnish celebrity, Peter Nygard,
the chairman and founder of an international company with over
12,000 employees worldwide and whose famous Bahamas
residence which had been the subject of much publicity in
Finland, was an issue of interest to the Finnish public].) Further,
appellate courts have rejected the idea that “any statement about
a person in the public eye is sufficient to meet the public interest
requirement.” (Albanese v. Menounos (2013) 218 Cal.App.4th
923, 934.) “[W]here the issue is of interest to only a private
group, organization, or community, the protected activity must
occur in the context of an ongoing controversy, dispute, or
discussion, such that its protection would encourage participation
in matters of public significance.” (Id. at p. 934.) However, the
“online spat,” as Defendants’ attorney put it, was not part of any
such ongoing discussion.
Moreover, Defendants overstate the amount of attention
Farnad’s Facebook post received. One hundred people (not 550),
including Berookhim, commented on Farnad’s post. Given that
Farnad purportedly had 2,680 Facebook friends, made his post
23
public, and tagged both Beverly Catering and Berookhim in his
posts (thereby linking to their profiles and reaching those
audiences as well12), the response reflected a relatively small
portion of the audience he targeted for his angry communications
about his dispute with Plaintiffs.13
3. Defendants’ Statements Do Not Affect a Large
Number of People Beyond the Parties
Defendants also argue their statements “could and did”
affect a large number of people beyond the parties. They contend
their statements constitute consumer protection information,
“ ‘serv[ing] as a warning’ to other members of [their] community
as they would likely have dealings with Plaintiffs and such
dealings would soon experience similar pandemic related
complications.”
12 Facebook’s Help Center describes, “When you tag
someone, that photo or post may be shared with both the person
tagged and their friends. This means that if you haven’t already
included their friends in the audience, their friends may now be
able to see it.”
( [as of Oct. 5,
2022].)
13 We should not be understood as implying that the
Persian Jewish community is not a distinct community with its
own specialized concerns, some of which may qualify as “public
issues” even if those concerns would not qualify as such outside of
that community. However, even accepting Defendants’
characterizations, the 100 members of this community affected by
the speech at issue here was a very small portion of the Jewish
Persian community. Indeed, as Defendants observe, “without a
doubt, there are many tens of thousands of Persian Jews living in
Los Angeles.”
24
In finding Defendants’ statements “may serve as a warning
not to use . . . Plaintiffs’ services,” the trial court accepted
Defendants’ argument seeking to situate this case within the
category of “consumer protection” public interest cases such as
Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 993 (Wilbanks).
We disagree with this classification. In Wilbanks, consumer
watchdog Gloria Wolk maintained a Web site that provided
consumer advice and warnings relating to viatical settlements,
which are “arrangements that allow dying persons with life
insurance policies to sell their policies to investors for a
percentage of the death benefits.” (Id. at p. 889.) “It [wa]s
undisputed that Wolk ha[d] studied the [viatical] industry, ha[d]
written books on it, and that her Web site provide[d] consumer
information about it, including educating consumers about the
potential for fraud.” (Id. at p. 899.) The plaintiff Scott Wilbanks
was the chief executive officer of a viatical settlements broker.
Wolk warned that Wilbanks’ company was under investigation by
the California Department of Insurance, that the company
offered incompetent advice, and was unethical. (Id. at p. 889.)
In assessing whether Wolk’s statements concerned an issue
of public interest, the appellate court observed, “[the] plaintiffs
are not in the public eye, their business practices do not affect a
large number of people and their business practices are not, in
and of themselves, a topic of widespread public interest.
Consumer information, however, at least when it affects a large
number of persons, also generally is viewed as information
concerning a matter of public interest.” (Wilbanks, supra, 121
Cal.App.4th at p. 898.) The appellate court explained, “the
viatical industry touches a large number of persons, both those
who sell their insurance policies and those who invest in viatical
25
settlements. . . . As relevant here, Wolk[, who the court noted
had expertise in the field,] identifies the brokers she believes
have engaged in unethical or questionable practices, and provides
information for the purpose of aiding viators and investors to
choose between brokers. The information provided by Wolk on
this topic, including the statements at issue here, was more than
a report of some earlier conduct or proceeding; it was consumer
protection information.” (Id. at p. 899, italics added.)
Unlike Wilbanks, in which Wolk provided ongoing
consumer information relating to the viatical industry,
Defendants’ posts here concerned a singular and personal small-
scale financial dispute14 between a caterer and customer. This is
not sufficient to create an issue of public interest within the
meaning of the statute. “[C]onsumer information that goes
beyond a particular interaction between the parties and implicates
matters of public concern that can affect many people is generally
deemed to involve an issue of public interest for purposes of the
anti-SLAPP statute.” (Wong v. Jing (2010) 189 Cal.App.4th 1354,
1366, italics added.) Otherwise, contrary to the intention of our
Legislature “to encourage continued participation in matters of
public significance” (§ 425.16, subd. (a)), every complaint a
consumer makes about a business would qualify as a consumer
protection information, no matter how limited the complaint is to
their personal dispute. Indeed, as the Woodhill Ventures court
observed, a single complaint is subject to the classic small sample
error and does not qualify as a matter of public interest within
14 This is not our characterization. As noted, Facebook
comments included suggestions for resort to small claims court or
a Better Business Bureau report.
26
the meaning of section 425.16. (See Woodhill Ventures, supra, 68
Cal.App.5th at p. 634.)
Further, although Farnad’s post urges “[d]o not use him to
cater your events[ and d]o not invite this evil disgusting thief into
your joys,” we do not agree that Farnad’s post is akin to Wolk’s
Web site or that it qualifies as consumer protection information
entitled to anti-SLAPP protection. The purpose of Defendants’
posts, as evidenced from the content and other contemporaneous
evidence regarding the context was not to provide consumer
information. Farnad or his attorneys admit he was “[e]nraged,”
that his post was an “emotional plea,” that he “resorted to a
public posting for retribution,” and that the community did not
ascribe any value to Farnad’s posts which they regarded as
merely “a legal dispute over a defined amount of money.” Indeed,
less than an hour before his post, Farnad texted Berookhim that
he “f[***]ed with the wrong person.” Then, in describing his
personal, financial dispute with Plaintiffs, he attacked
Berookhim’s integrity, calling Berookhim a thief; a disgusting
person; a swindling, cheating, disgusting animal; a lame excuse
for a human; an evil disgusting thief; a shame to his community;
and a swindling lying scam artist. At the end of his post, he
tagged both Beverly Catering and Berookhim, ensuring his angry
post would reach not only a wider audience, but Plaintiffs’
audience, and then concluded his post with a “hashtag”
encapsulating the key message he wanted to convey: “Mehran
Ron Berookhim [hyperlinked to Berookhim’s Facebook page]
#thief.”15 But Farnad did not stop there. In response to
15Given the function of hashtags, this is powerful evidence
of Farnad’s key message and intent. “Because hashtags are
27
comments to his post, Farnad requested—nearly 50 times—that
others share his post and write reviews on Yelp and Google “so
everyone recognizes this thief” (or some variation of the same
sentiment). Farnad also stated that “Beverly Catering needs to
pay.” Thus, notwithstanding Farnad’s after-the-fact attempt to
reframe the purpose of his post and his intention in posting it,
the content, timing, and tone of Farnad’s post as well as the
frequency and volume of his own responses to comments to his
post—including statements that those defending Berookhim “look
after [their] own affairs” and “stop carrying water for a thief”—
strongly indicate his statements were driven by anger and a
desire for retribution and leverage in his personal, financial
dispute and not in pursuit of a greater public discussion or
consumer protection.
Moreover, Defendants’ statements did not concern the
quality of the Plaintiffs’ food or catering services16 and arose from
a unique factual situation that others were unlikely to
experience. Farnad made his deposit just before the pandemic
required him to postpone or cancel the planned wedding and
there was no written contract that addressed the issue of the
specifically designed to summarize, categorize, and contextualize
social-media speech, it is easy to see how they could help lend
important context to a statement that might or might not be
actionable defamation.” (Of Reasonable Readers, supra, 23 Va. J.
Soc. Pol’y & Law at p. 165.)
16 That Farnad sought to hire Plaintiffs and his sister’s
comment that her brother “obviously had no doubts or your
abilities or reputation as a caterer—he was hiring you for the
biggest event in his life” suggest Farnad thought Plaintiffs’
services were satisfactory.
28
refundability of his deposit. This specific context was not likely
to be one that was widespread. In addition, at the time
Defendants made their statements, due to the consequences of
the Covid-19 pandemic, it would have been improbable that
others would hire Plaintiffs (or any caterer, for that matter) to
cater any events in the foreseeable future and risk losing their
deposit in the same manner. Thus, the functional nexus between
Defendants’ statements and any asserted claim of consumer
protection would be too slight to warrant the protection of the
anti-SLAPP statute. (See FilmOn, supra, 7 Cal.5th at p. 150
[recognizing § 425.16 movants are adept at drawing tenuous
connections between their speech and abstract issues of public
interest]; Woodhill Ventures, supra, 68 Cal.App.5th at p. 632
[“Agile thinkers always can create some kind of link between a
statement and an issue of public concern. All you need is a
fondness for abstraction and a knowledge of popular culture”].)
Defendants also cite several other cases for the proposition
that “statements made (even to a limited audience) to assist
consumers are matters of public concern.” Yet, each of these
matters is distinguishable. (See Grenier v. Taylor (2015) 234
Cal.App.4th 471 [internet posts concerning a pastor of a church
with membership between 500 to 1000 that he was a child
molester and stealing money from the church were connected to
an issue of public concern]; Gilbert v. Sykes (2007) 147
Cal.App.4th 13 [the defendant’s Web site that offered tips on
choosing a plastic surgeon, ruminations about plastic surgery in
general, as well as assertions that a prominent plastic surgeon
produced nightmare results that required the defendant to have
reconstructive surgery contributed to the general debate over the
pros and cons of undergoing cosmetic surgery]; Carver v. Bonds
29
(2005) 135 Cal.App.4th 328, 344 [newspaper article that warned
readers not to rely on doctors’ ostensible experience in treating
professional athletes and told a cautionary tale of the plaintiff
podiatrist exaggerating his experience to include treatment of
professional athletes to market his practice involved an issue of
public interest]; Traditional Cat Association, Inc. v. Gilbreath
(2004) 118 Cal.App.4th 392, 397 [concluding, in a matter decided
15 years before FilmOn or Rand, that comments on Web site
concerning litigation between two cat associations and their
principals “[g]iven the controversy surrounding the parties’
dispute and its evident notoriety in the cat breeding community,”
concerned matters of public interest in that community]; see also
Woodhill Ventures, supra, 68 Cal.App.5th at pp. 634-635
[distinguishing that matter of a customer complaint from
consumer protection matters in Wilbanks; Gilbert v. Sykes, supra;
and Carver v. Bonds, supra].)
4. Defendants Social Media Posts Did Not Concern an
Issue of Widespread Public Interest Such That They
Were Entitled to Anti-SLAPP Protection
Defendants next argue that their posts involved a topic of
widespread interest—“namely, the public interest in Southern
California (particularly the Los Angeles area) as to the quality of
services provided to the Jewish and Persian Jewish communities
by kosher caterers specializing in large events, particular during
the Covid-19 [p]andemic.” They claim that unlike Yang’s
statements in Woodhill Ventures, Farnad did not seek retribution
or to whip up a crowd. Rather, he sought to “warn[ ] similarly
situated people in his community about an issue of public
interest,” and Defendants again contend the “volume of
30
attention” the post gathered evidences that his post opened
public debate.
Our high court’s recent decision of Geiser v. Kuhns, supra,
13 Cal.5th 1238 offers useful guidance as to whether the
challenged speech here was one of widespread public interest. In
Geiser, a couple lost their jobs due to the 2008 recession. By
2015, an institutional purchaser bought their home at a
foreclosure sale and attempted to evict the couple. The couple
sought help from the Alliance of Californians for Community
Empowerment (ACCE), “an organization whose mission is ‘to
save homes from foreclosures’ and to ‘fight against the
displacement of long-term residents.’ ” (Id. at pp. 1243-1244.)
Approximately 25 to 30 ACCE members—who had no “personal
connection with, or loyalty to,” the couple—demonstrated at both
the institutional purchaser’s offices and the home of its chief
executive officer. The chief executive officer sought a restraining
order to enjoin any further demonstrations. (Id. at pp. 1244,
1251.)
The court concluded that the demonstrations concerned an
issue of public interest for purposes of the anti-SLAPP statute
even if they also involved a matter of private concern to the
individual family, who was evicted from the family home. (Geiser
v. Kuhns, supra, 13 Cal.5th at pp. 1253-1254.) The Supreme
Court explained: “It is common knowledge that foreclosures,
evictions, and inadequate housing are major issues in
communities throughout California, and the participation of more
than two dozen members of an advocacy group dedicated to
fighting foreclosures and residential displacement must be
considered against that backdrop.” (Id. at p. 1251.) The high
court held that the speech implicated a public issue even though
31
it could also be understood to “implicate[ ] a private dispute.” (Id.
at p. 1253.) Notably, in reaching its holding, the court explained
“[a] court evaluating an anti-SLAPP motion should take the
position of a reasonable, objective observer” in determining
whether a public issue is implicated. (Id. at p. 1254.) Although
the movant’s beliefs, motivations, and characterizations may
inform the court’s analysis, the court may not give them any
weight if they are not objectively reasonable. (Ibid.)
Following the guidance of Geiser, we need not accept
Defendants’ post-hoc recasting of both the content and the
context of their posts, which, objectively, do not comport with the
evidence in the record. As we described above, prior to the
litigation, Farnad’s counsel acknowledged that Farnad’s post
originated out of his desire for retribution. Additionally, contrary
to Defendants’ assertion on appeal that Farnad did not seek to
“whip up a crowd,” he urged those who commented on his post
nearly 50 times to repost his post or share a review on Yelp and
Google, noted that “Beverly Catering needs to pay,” and
repeatedly called Berookhim a thief or disgusting in connection
with his requests for repost. These facts, among others we
described above, belie Defendants’ arguments that their speech
was unlike Yang’s in Woodhill Ventures and instead concerned
issue of widespread public interest.
An issue of widespread public interest is not one that is “of
interest to only a limited but definable portion of the public, a
narrow segment of society.” (Du Charme v. International
Brotherhood of Electric Workers (2003) 110 Cal.App.4th 107, 117,
118.) “[I]n cases where the issue is not of interest to the public at
large, but rather to a limited, but definable portion of the public
(a private group, organization, or community), the
32
constitutionally protected activity must, at a minimum, occur in
the context of an ongoing controversy, dispute or discussion, such
that it warrants protection by a statute that embodies the public
policy of encouraging participation in matters of public
significance.” (Id. at p. 119, fn. omitted; see FilmOn, supra, 7
Cal.5th at p. 150.) Stated differently, “it is not enough that the
statement refer to a subject of widespread public interest; the
statement must in some manner itself contribute to the public
debate.” (Wilbanks, supra, 121 Cal.App.4th at p. 898, italics
added.)
Defendants attempt to define their statements as connected
to an issue of widespread public interest by tethering it to the
Covid-19 pandemic. While the pandemic may have occasioned
the cancellation of Farnad’s wedding, the challenged statements
that, for example, Berookhim was a thief, a crook, or a swindling,
lying scam artist, have nothing to do with the pandemic. As we
alluded to above, “ ‘[t]he fact that “a broad and amorphous public
interest” can be connected to a specific dispute’ is not enough.”
(FilmOn, supra, 7 Cal.5th at p. 150, quoting Dyer v. Childress
(2007) 147 Cal.App.4th 1273, 1280.) As to the issue of
Berookhim’s “honor” as a kosher caterer serving the Persian
Jewish community, Defendants have not demonstrated that there
was an ongoing discussion or debate on this issue or that by their
statements that Plaintiffs were thieves, crooks, and swindling
lying scam artists, Defendants “participated in, or furthered, the
discourse that makes an issue one of public interest.” (FilmOn,
supra, at p. 151; Geiser v. Kuhns, supra, 13 Cal.5th at p. 1243
33
[“we ask whether the challenged activity contributes to public
discussion of any such issue.”].)17
Accordingly, we conclude that Defendants have not carried
their burden in demonstrating the statements at issue in
Plaintiffs’ complaint concerned an issue of public interest.
Because Defendants are not the prevailing parties on their
special motion to strike, we deny their request to award them
fees and costs.
17 Further, the matter before us lacks the hallmarks in
Geiser that informed the Supreme Court’s decision that the
challenged activity there was made in connection with a public
issue. As Geiser observed, “foreclosures, evictions, and
inadequate housing are major issues in communities throughout
California.” (Geiser v. Kuhns, supra, 13 Cal.5th at p. 1251.) In
contrast, in the early months of the pandemic, a caterer’s failure
to return an arguably non-refundable deposit following the
government’s stay-at-home orders simply does not affect the
same breadth of people, nor is its impact as great. That the
interest in Geiser was widespread is borne out by the fact that an
advocacy group with membership unrelated to the couple existed
to combat foreclosures and displacement of long-term residents
as well as the fact that three publications contemporaneously
issued articles concerning the controversy. Similar facts
evidencing the impact or interest in Defendants’ and Plaintiffs’
dispute simply do not exist here.
34
DISPOSITION
The trial court’s order denying the special motion to strike
is affirmed. Defendants’ request for fees and costs is denied.
Each party is to bear their own costs on appeal.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
35